Chapter 8: Manner of New Manufacture
JOBNAME: Medical Patents Law PAGE: 1 SESS: 2 OUTPUT: Thu Jul 14 09:50:44 2011 8. Manner of new manufacture A INTRODUCTION In the period before 1977, the courts in the United Kingdom held that methods of medical treatment of the human body were unpatentable subject matter.1 The exclusion was not based on strong policy considerations initially, but, rather, on an accepted construction of section 101 of the Patents Act 1949, which had codiﬁed section 6 of the Statute of Monopolies.2 The patentability or otherwise of methods of medical treatment was based on whether they were compatible with the objects of the statute or considered a manner of manufacture. The concept of manufacture included a vendible machine or substance,3 or mechanical or chemical objects.4 It was not surprising that when the question of methods of medical treatment arose for consideration the courts were unable to ﬁnd a satisfactory answer. Some cases even accepted that the basis of the exclusion could be traced to Patent Ofﬁce practice. The uncertainty of juridical origins allowed the courts to proffer differing rationales for the exclusion and then ultimately accepting a vague notion of public policy5 as its underlying rationale. The failure of the courts in addressing this central question meant that they failed to articulate the proper role of such public policy considerations when determining patentability. They were also inconsistent in the use of various terminologies used to describe the exclusion. Methods of medical treatment of humans were excluded from...
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